The Treaty of Waitangi

A Constitution for Aotearoa New Zealand proposes that the Treaty of Waitangi should be included in New Zealand’s constitution. The Treaty is already an integral part of New Zealand’s constitutional arrangements, and is recognised in many of our statutes and court decisions. But its status is not consistent or clearly defined. We think the Treaty should be included in any codified Constitution to provide clarity and to reflect the reality of its constitutional importance.

The Treaty in New Zealand’s constitution

Our views about the Treaty of Waitangi, and our reasons for its inclusion in a codified constitution, are set out in chapter 7 of A Constitution for Aotearoa New Zealand. The specific constitutional proposals are in Part 11 of our draft constitution.

Our proposal to make the Treaty a part of New Zealand’s constitutional law has generated a good deal of feedback. Some agree, some think the proposal doesn’t go far enough, and some oppose the Treaty altogether. The blogs below set out the full range of views. Publication does not necessarily imply endorsement.

One of our key reasons for proposing to include the treaty in the constitution is its uncertain legal effect. The treaty created a relationship between the Crown and Māori, and recognised both as having power. The Court of Appeal has described the treaty relationship as a partnership between the two peoples.

The Treaty is included in many New Zealand statutes, and the courts have increasingly referred to it when looking for guidance on how to interpret statutes. The treaty is also an important consideration in government decision-making. But the effect is inconsistent. The treaty is in some laws but not others. That results in confusion and uncertainty.

In our view the Treaty of Waitangi should be an essential part of any written constitution. It is essentially New Zealand’s first constitutional document. The Treaty is a key source of the New Zealand Government’s moral and political claim to legitimacy in governing the country. The Crown proclaims its intention to abide by the Treaty and to settle past breaches of it. In our view, any written constitution should recognise the Treaty’s contemporary role within our constitutional order.

For this reason, our draft constitution proposes to recognise the treaty and the rights, duties, and obligations that flow from it, and to provide that they are always speaking.

If New Zealand becomes a republic, the rights, duties, and obligations currently vested in the Crown would be veste in the State.

Our draft constitution also provides that the text of the treaty can never be amended.

Other projects have also considered the treaty’s place in New Zealand’s constitutional law. Matakite Mai Aroha is an independent working group established to engage with Māori and to work on developing a model constitution based on kawa and tikanga. And the Government’s Constitutional Advisory Panel also considered the Treaty in its 2013 report.

A written constitution is perfectly OK as long as it is without the Treaty of Waitangi.

Submission to Constitution Aotearoa NZ

The legal effect of the Treaty is inconsistent, incoherent and uncertain. There should be certainty. In our view, the Treaty should be an essential part of any written constitution.

Geoffrey Palmer and Andrew Butler

The Treaty is not simply about historical breaches, claims and settlement. At its core, it is a constitutional document. We ought to more fully embrace the constitutional role of the Treaty.

Dr Carwyn Jones

Te Tiriti o Waitangi is the only shared, ‘partnership’ or bicultural basis for our Constitution.

Wally Hicks

Since the Treaty is the founding document of New Zealand it makes sense to include it as superior law.